IN THE

HON’BLE SUPREME COURT

OF INDIA
Case Concerning

‘Exercise of Private Defence’

STATE OF UTTAR PRADESH

(APPELLANT)

V.
RAM SWARUP AND ANR.
(DEFENCE)

MEMORANDUM FOR THE DEFENDANTS

COUNSEL ON BEHALF OF THE DEFENDANTS

SYED ZEESHAN
Roll No.-163

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 TABLE OF CONTENTS

1. LIST OF ABBREVIATIONS.......................................................................3

2. LIST OF AUTHORITIES.............................................................................4
 TABLE OF CASES..............................................................................................4
 BOOKS.................................................................................................................4
 ACTS, LEGISLATIONS AND STATUTES.......................................................4

3. SYNOPSIS OF FACTS................................................................................5

4. ISSUES RAISED.........................................................................................6

5. SUMMARY OF ARGUMENTS..................................................................7

6. WRITTEN SUBMISSIONS.........................................................................8

7. PRAYER.....................................................................................................16

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 LIST OF ABBREVIATIONS

A.C. - Appeal Cases (1891 onwards)

App Cas. - Appeal Cases, Law Reports (1876-1891)
A.I.R. – All India Reporter
All E.R – All England Law Reports
Bom.- Indian Law Reports, Bombay Series (from 1876)
Corp.- Corporation
Edn. – Edition
I.L.R. – Indian Law Reports
L.R. - Law Reports
p. – Page Number
S.C. – Supreme Court
S.C.C. – Supreme Court Cases
Vol - Volume
v. – versus

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 LIST OF AUTHORITIES
Cases:

 Brown v. United States, (1921) 256 U.S.

 Dahyabhai Chhaganbhai Thakker v.  State of Gujarat, 1964CriLJ472
 Dharminder v. State of HP, AIR 2002 SC 3097
 Ghulam Haider Iman Baksh v Emperor; AIR 1938 Sind 63
 Joginder Singh v. State of HP, (1995) CrLJ 1 124
 K.M. Nanavati v. State of Maharashtra, [1962] (1) Supp S.C.R. 567
 Kishan Chand v. State of U.P., AIR 2008 SC 133
 Kishore Shambudatta Mishra v. State of Maharashtra, AIR 1989 SC 1173
 Madhusudan Das v. Narayan Bai, AIR 1983 SC 114
 Munshi Ram and Ors. v. Delhi Administration, AIR 1968 SC 702
 Nafiz Ahmed v. State 1989 CriLJ 1296 (Bom);
 Nandu Rastogi v. State of Bihar, AIR 2002 SC 3443
 Rajaram Raghu v. State, (1956) 59 Bom LR 43
 Ravishankar Manjhi v. State of Jhakhand, AIR 2009 SC 1262
 Shive Chand v. State of U.P., 1995 CrLJ 3869 (All)
 State of UP vs. Shiv Murat, 1982 CriLJ 2003
 State v. Sharif Ahmad Alias Achhan, (1956) 2 All 188

Books:
1. Gaur, K. D., A Textbook on the Indian Penal Code, 3rd Edition (2004)
2. Ratanlal And Dhirajlal, The Indian Penal Code, 34th Edition (2014)
3. David Ormerod, ‘Smith and Hogan Criminal Law’, 12th Edition (2008)

Acts/ Statutes/ Legislations:

 Code of Criminal Procedure, 1973
 Indian Penal Code, 1860
 Indian Evidence Act, 1872

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 SYNOPSIS OF FACTS

1. On the morning of June 7, 1970, Ganga Ram (Accused No.2) and his three sons Ram Swarup

(Accused No.1), Somi and Subhash, on their way back from their vegetable farm went to the

Sabzi Mandi at Badaun (U.P.) market to purchase a basket of melons.

2. The deceased (Sahib Datta Mal alias Munimji) declined to sell it saying that it was already

marked for another customer. Hot words followed during which the deceased, asserting his

authority, said that he was the Thekedar of the market and his word was final.

3. This led to a sudden verbal feud between Munimji and his servants and Ganga Ram and his

sons. Ganga Ram was attacked with lathis by Munimji’s servants. In order to defend his

father, Ram Swarup shot at the aggressors. Consequently, Munimji was shot dead.

4. Ganga Ram and his sons, Ram Swamp, Somi and Subhash were prosecuted in connection

with the death of Munimji.

5. Ram Swarup was convicted by the learned Sessions Judge, Badaun, under Section 302,

Panel Code, and was sentenced to death. Ganga Ram was convicted under

Section 302 read with Section 34 and was sentenced to imprisonment for life. Somi and

Subhash were acquitted of all the charges.

6. The High Court of Allahabad acquitted Ganga Ram and Ram Swarup in an appeal filed by

them and dismissed the appeal filed by the State Government challenging the acquittal of

Somi and Subhash.

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7. In this appeal by special leave brought before the Hon’ble Supreme Court of India, the

main concern is regarding the correctness of the judgment of acquittal in favour of Ganga

Ram and Ram Swarup.

ISSUES RAISED

1. WHETHER RAM SWAROOP IS GUILTY FOR THE OFFECENCE OF MURDER IN THE PRESENT

CASE?

2. WHETHER GANGA RAM CAN BE CHARGED UNDER SECTION-302 READ WITH SECTION-

34 OF IPC FOR THE MURDER OF THE DECEASED?

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 SUMMARY OF ARGUMENTS

1. THE ACCUSED IS NOT GUILTY UNDER SECTION 302 OF THE IPC FOR THE CHARGE OF

MURDER

The act of Ram Swaroop cannot be considered as murder as

per Section 300 of the IPC as the essential element of a crime, mens rea is not present.

moreover, he was merely trying to exercise his right to the private defence of property

under Section 103 of the IPC, and was trying to prevent a dacoity. Therefore, he cannot be

punished for murder under Section 302 of the IPC.

2. GANGA RAM CANNOT BE CHARGED UNDER SECTION-302 READ WITH SECTION-34 OF

IPC FOR THE MURDER OF THE DECEASED.

Section-302 penalizes the offence of murder while Section-34 deals with ‘common

intention’. In the present case, the accused Ganga Ram cannot be charged for murder as

per Section-300 and thereby cannot be made liable under Section-302 of IPC.

Moreover, the essentials of common intention cannot be established to make the accused

liable for the same. Hence, Ganga Ram cannot be held responsible for the aforementioned

offence.

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 WRITTEN SUBMISSIONS

CONTENTION 1:

THE ACCUSED, RAM SWAROOP IS NOT GUILTY FOR A CHARGE OF MURDER

It is humbly submitted before the Honorable Court that the accused Ram Swaroop is not liable
under Section 302, IPC for the murder Munimji.

[I.A] THE ACT OF THE ACCCUSED DOES NOT CONSTITUTE THE CRIME OF
MURDER

In order to constitute a crime under the IPC, the presence of two important ingredients must be
fulfilled. These are: (a) Actus reus: the external or physical element of a crime; (b) Mens rea: the
mental element of the crime.

The actus reus is made up, generally, of conduct and sometimes its consequences, and also of the
circumstances in which the conduct takes place. 1 The facts of the present case indicate, prima
facie, that actus reus was present as the act of Ram Swaroop resulted in Munimji’s death.
However, the presence of only actus reus is not enough to constitute a crime, it must be
established that not only mens rea was present but it must be present together, that there must be
a coincidence of actus reus and mens rea.2

In the case of Jayaraj v. State of Tamil Nadu3, the Supreme Court gave three degrees of mens
rea, any one of which is sufficient to prove a person’s criminal intent. The act must be done:

(a) With the intention of causing death, or (b) with the intention of causing such bodily injury as
is likely to cause death, or (c) with the knowledge that the act is likely to cause death. However,
none of the above is present in the case.

1
Nafiz Ahmed v. State 1989 CriLJ 1296 (Bom); Harbans Singh Bhan Singh v, State of Punjab AIR 1957 SC 637
2
David Ormerod, Smith & Hogan Criminal Law 45 (12th ed. Oxford Press 2008).
3
AIR 1976 SC 1519

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[I.A.1] THE ACCUSED DID NOT ACT WITH THE INTENTION OF CAUSING DEATH

A question of intention is a question of fact. But in a case of murder, where “intention” is one of
the offences, there must be a definite finding of the presence of the guilty intention, and when it
is reasonably doubtful whether this intention is present, then the accused is entitled to the benefit
of the reasonable doubt.4 The evidence of the present case is circumstantial, and has several
discrepancies with regard to Munimji’s death. Also, the intention of the accused was to safeguard
his father, which was his duty. While doing so, he acted in the onus of a private defense of the
body of another person. It is therefore submitted that his intention was not to cause death.

[I.A.2] THE ACCUSED DID NOT INTEND TO CAUSE SUCH BODILY INJURY AS IS
LIKELY TO CAUSE DEATH

The question is not whether the accused intended to inflict a serious injury or a trivial one but
whether he intended to inflict the injury that is proved to be present. If he did not do so, or if the
totality of the circumstances justifies such an inference, the, the intent to cause this injury is not
proved.5 It was held in Virsa Singh v. State of Punjab, merely because the blow landed on a
particular spot on the body, divorced from the circumstances in which the blow was given, it
would be hazardous to say that the accused intended to cause that particular injury. 6 In the
present case, the accused did not act upon the design of causing such harm to the deceased, as his
primary object was to protect his father. He merely fired in the spur of the moment. Therefore, it
is submitted that the accused did not wish to cause such bodily injury that would lead to death.

[I.A.3] THE ACCUSED DID NOT ACT WITH THE KNOWLEDGE THAT HIS ACT IS
LIKELY TO CAUSE DEATH

Knowledge is an awareness of the consequence of an act. 7 Section 300 (4), IPC deals with
knowledge of an act.8 This clause will be applicable where the knowledge of the offender as to
the probability of death of a person or persons, being caused from his imminently dangerous act.
4
Ghulam Hyder Inram Baksh v. Emperor, AIR 1938 Sind 63 at p. 65
5 rd
Penal Law of India, Dr. Hari Singh Gour, vol. 3, , Law Publishers India Pvt. Ltd. 3 Ed.
6
AIR 1958 SC 465
7
Sabal Singh v. State of Rajasthan, 1985 RLW 290 at p. 294
8
Section 300, fourthly- ‘person committing the act knows that it is so imminently dangerous that it must, in all
probability cause death, or such bodily injury as is likely to cause death.’

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Also, such knowledge on the part of the offender must be of the highest degree of probability. 9
“An act done with such knowledge alone is not prima facie an act of murder, subject to the proof
that there is some excuse. It becomes an act of murder only if it can be positively affirmed that
there was no excuse.”10 In the present case, the accused did not want to cause any injury to the
deceased in the first place; he was fulfilling his duty and he merely wished to protect his father,
thus the reasonable excuse. Hence, it is contended that his act cannot be deemed as murder.

[I.B] THE ACT OF MAJ.(RETD.) RANA WAS OF PRIVATE DEFENSE

Sec. 300 of IPC, 1860 allows the exercise of the right of private defense of person or property
done in good faith. It says, ‘culpable homicide is not murder if the offender, in the exercise in
good faith of the right of private defense of person or property, exceeds the power given to him
by law and causes the death of the person against whom he is exercising such right of defense
without premeditation, and without any intention of doing more harm than is necessary for the
purpose of the defense.’11

[I.B.1] RIGHT OF PRIVATE DEFENCE OF BODY CAN BE EXERCISED

The right of protection of body whether one’s own or another person’s against certain specified
offences, embraced under section 97 of the IPC. 12 The Code mentions that ‘every person has the
right, to defend his own body, and the body of any other person, against any offence affecting the
human body.’ The defense is subject to limitations present only in section 99 of the code, namely
(a) If there is sufficient time for recourse to public authorities, the right is not available, (b) That
more harm than necessary should not be caused, (c) There must be reasonable apprehension of
death or of grievous hurt or damage to the property concerned.

However, no exception works upon in the present case.

9
State v. Rayavarapu Punnayya, AIR 1977 SC 45
10
Plowden J in Barkatulla (1887) PR No. 32 of 1887 at p 64
11
Exception-2, Section-300, Indian Penal Code, 1860
12
Superintendent & Legal Remembrancer of legal affairs v Bhupati Bhushan Biswas, 1956 AWR (Sup.) 10:60
CWN 114

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[I.B.1.] THERE WAS NO SUFFICIENT TIME FOR RECOURSE TO PUBLIC
AUTHORITIES

Where there is an imminent danger to the body and the person in possession of the power
apprehends substantial damage thereto, he is entitled to raise his own arms in defense and
retaliate to keep away the attack without applying for State aid. 13 The incident took place in a
spur of a moment. The life of the father of the accused was under the line. There was no time for
recourse to public authorities.

[I.B.2] NO SUCH HARM WAS CAUSED THAT WAS MORE THAN NECESSARY

A person may use such force as is reasonable in the circumstances in the prevention of crime or
in effecting or assisting in the lawful arrest of offenders or persons unlawfully at large. 14 When a
person in defending his body or property is also acting in the prevention of crime, he may use
such force as is reasonable in the circumstances, as he believes them to be.

“All these authorities lay down the rule that even if the accused were to cause more harm than is
absolutely necessary in repelling the attack, it cannot be said that he exceeded the right given to
him by the law.”15 In a case, where the accused had not deliberately chosen the dangerous
weapon, that he was unassisted and that the alarm and excitement produced by his determination
to defend his house and his family to the very death, might have, under all circumstances, led
anyone to use greater violence than was absolutely necessary for defense, the Court felt justified
in passing the light sentence of four months’ imprisonment instead of culpable homicide.The
accused in the present case acted in order to protect his father’s life and did whatever he thought
was reasonable in order to prevent any occurrence of grievous hurt to his father.

[I.C] THERE IS SUFFICIENT ROOM FOR BENEFIT OF DOUBT IN THE PRESENT

CASE

13
State of Orissa v. Rabindranath, 1973 Cr LJ 1686 (FB-Orissa)
14
Halsbury’s laws of England, Lexis Nexis, Edition 5, 2010, Para 20
15
Ghasi Ram v State of Madhya Pradesh, AIR 1952 Bhopal 25, para. 30

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'Benefit of doubt' is nothing but a state of mind when the Presiding Officer in Court cannot say
and feel with moral certainty of truth that the charge in a criminal case stood proved in a manner
resulting in conviction.16 In the landmark case of Ghulam Haider Iman Baksh v Emperor17, the
court held that a in case of murder where intention is one of the most essential elements of the
offence, it is always necessary that there should be a definite finding as to whether the necessary
guilty intention is or is not present and when it is reasonably doubtful upon the evidence of the
prosecution whether the intention is present, then the accused is entitled to the benefit of that
reasonable doubt and he must be acquitted of the charge of murder.

It has been proved above that the accused did not intend to murder the deceased. Also, the
factual matrix provides sufficient room for benefit of the doubt. Hence, due to the various
incongruities in the evidence and testimonies, it is contented that there is sufficient room for
benefit of doubt in the present case and so Ram Swaaroop is not guilty for a charge of Murder.

[I.C.1] Testimony of Prosecution Witnesses and Evidence put forth are not reliable.

Caution is a safe and unfailing guide in the judicial armoury. It is submitted that the evidence of
the five witnesses- Sona Ram, Nanak Chand, Shanti Lal, Shariat Ullah, Shiva Dutta Mal- must
be viewed with great caution because Sona Ram and Shanti Lal are the first cousins of the
deceased, Nanak Chand and Shiva Dutta Mal were co-sharers of the deceased in the Tehbazari
contract, Shariat Ullah was a constituent of the deceased.

Attention must be drawn to the case of Madhusudan Das v. Narayan Bai18, where the court held
that the fact that a witness is related to one of the parties cannot by itself be considered sufficient
to warrant discarding of his evidence in toto. It may however, be that the evidence of such
witness must be scrutinized very carefully.

Further, there was no entry in the account books of the deceased evidencing the sale of the
melon-basket and that the owner of the melons was not called to support the prosecution case.
This creates a glitch in the story as put forth by the Prosecution. Also, it does not stand to reason
that the appellants and their two other companions (sons of Ganga Ram) would walk into the
Sabzimandi in broad day light and be caught and beaten up, and even be done to death by the
16
Joginder Singh v. State of HP, (1995) CrLJ 1 124
17
Ghulam Haider Iman Baksh v Emperor; AIR 1938 Sind 63
18
AIR 1983 SC 114

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deceased, his partners and servants, besides hundreds of people who were bound to be present in
the Sabzimandi at about 8 A.M. Such a large congregation could have easily disarmed the
appellants and their two other companions and given them a thorough beating if not mortal
injuries.

Even if the appellants and their companions would have been so very hazardous, they could not
have exposed their lives by carrying only one cartridge in the gun, if they had really gone to
murder the deceased and make a safe retreat. For this reason one would expect them to keep both
the barrels loaded with cartridges and also to carry some spare cartridges for the sake of
contingency and safety.

It is thereby submitted that, in the present case, a routine visit to the market led to an unexpected
quarrel between the deceased and Ganga Ram, the quarrel assumed the form of grappling, the
grappling provoked the servants of the deceased to beat Ganga Ram with lathis and the beating
impelled Ram Swarup to use the gun in defence of his father and is thereby, not liable for the
murder of the deceased under Section-300 read with Section-302.

CONTENTION 2:

GANGA RAM CANNOT BE CHARGED UNDER SECTION-302 READ WITH SECTION-34 OF IPC

FOR THE MURDER OF THE DECEASED.

For the offence of murder as defined under Secrion-300 and penalized under Section-302, it is

necessary that the essentials laid therein be fulfilled. In the instant case, none of these essentials

are fulfilled with respect to the 2nd accused, i.e., Ganga Ram. On the contrary he was being hurt

by the servants and relatives of the deceased by means of a lathi and bullet shot by Ram Swarup

(Ganga Ram’s son) at the deceased was in exercise of his righ of private defence which

constitutes an exception under Section-300.

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Moreover, for the purpose of making Ganga Ram liable under Section-34 for furtherance of the

offence with common intention, it is necessary to prove that the criminal act was done in concert

pursuant to the pre-arranged plan.19 It must be shown that the criminal act complained against

was done by one of the accused persons in furtherance of common intention of all. 20 In the

present matter, it cannot be established beyond reasonable doubt that such a pre-arranged plan

existed and the act was done in furtherance of it. On the contrary, the incident happened in a

matter of few seconds and in exercise of private defence. Hence, it is contended that Section-34

cannot be applied to make Ganga Ram liable.

In light of the testimonies of the Prosecution witnesses Shariat Ullah (PW-4) and Shiva Dutta

Mal (PW-5), it is asserted that the present incident happened within the twinkling of an eye and

that Ganga Ram never carried the gun and that at all stages it was Ram Swarup who had the gun

as per the concurrent findings of High Court and the Sessions Court.

It is argued that the finding of the Sessions Court that "Ram Swarup must have shot at the

deceased at the instigation of Ganga Ram" is based on no evidence for none of the five eye-

witnesses speaks of any such instigation. Therefore, the finding must be overlooked and Ganga

Ram be acquitted.

Further, the charge under Section 307, Penal Code against Ganga Ram, in regard to the knife-

attack on Nanak Chand is baseless as he received no injury at all and the story that the knife-

blow missed Nanak Chand but caused a cut on his kurta and Bandi is implausible. The High

Court examined these clothes but found no cut marks thereon. There is no substance in the

charge against Ganga Ram and he should thereby be acquitted.

19
Sharif Ahmad Alias Achhan, (1956) 2 All 188
20
Rajaram Raghu, (1956) 59 Bom LR 43; Nandu Rastogi v. State of Bihar, AIR 2002 SC 3443

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It is humbly submitted that Ganga Ram cannot be made liable for the aforementioned charges, as

his involvement cannot be proved beyond reasonable doubt.

PRAYER FOR RELIEF

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Wherefore, in light of the facts stated, issues raised, arguments advanced and authorities cited,
the Respondent, humbly prays before the Hon’ble Supreme Court of India, that:

a) The previous decision of the High Court of Uttar Pradesh acquitting the accused in
the present case must be upheld.
b) The appeal must be dismissed.

The Court may also be pleased to pass any other order, which the Court may deem fit in light of
justice, equity and good conscience.

All of which is most humbly prayed.

Date: 10th October 2014 COUNSEL ON BEHALF OF RESPONDENTS

SYED ZEESHAN
(Roll No. – 163)

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